[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-13819

Non-Argument Calendar

________________________

D.C. Docket No. 0:17-cr-60071-BB-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AQUILINO GUIZAMANO-CORTES,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 12, 2018)

Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Case: 17-13819 Date Filed: 04/12/2018 Page: 1 of 5 
2

Aquilino Guizamano-Cortes appeals his 120-month statutory mandatory 

minimum sentence for conspiracy to possess with intent to distribute cocaine while 

on board a vessel subject to the jurisdiction of the United States, in violation of 46 

U.S.C. § 70506(b). On appeal, he argues that the inapplicability of 18 U.S.C. § 

3553(f) safety-valve relief for offenses in violation of the Maritime Drug Law 

Enforcement Act (Title 46) violates the Fourteenth Amendment’s guarantee of 

equal protection.

I.

Section 3553(f)’s “safety valve” provision allows a district court to sentence 

a defendant below a statutory minimum if the court finds that certain factors have 

been met, but only if the defendant was convicted of an offense under certain 

statutes, including sections 1010 and 1013 of the Controlled Substances Import and 

Export Act, 21 U.S.C. §§ 960, 963. 18 U.S.C. § 3553(f). We have determined that 

defendants convicted of violations of Title 46 are not eligible for safety valve relief 

under § 3553(f). United States v. Pertuz-Pertuz, 679 F.3d 1327, 1329 (11th Cir. 

2012).

Preserved constitutional challenges to a district court’s application of the 

sentencing guidelines are reviewed de novo. United States v. Wetherald, 636 F.3d 

1315, 1320 (11th Cir. 2011). However, in order to preserve a claim of error, the 

defendant must make a timely constitutional objection. United States v. McKinley,

Case: 17-13819 Date Filed: 04/12/2018 Page: 2 of 5 
3

732 F.3d 1291, 1295 (11th Cir. 2013). The failure to make a timely constitutional 

objection results in our application of plain error review. McKinley, 732 F.3d at

1296 (11th Cir. 2013). Under plain error review, a party must show that an error 

occurred, the error was plain, the error affected substantial rights, and the failure to 

correct the error would seriously affect the fairness of the judicial proceeding. 

United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017), cert. denied, 138 S. 

Ct. 488 (2017). Where the explicit language of a statute or rule does not 

specifically resolve an issue, there can be no plain error where there is no 

precedent from this Court or the Supreme Court directly resolving it. United States 

v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015). 

Here, Guizamano-Cortes’s objection to his sentence was neither timely nor 

sufficient; thus, he did not preserve his claim of error on appeal. He did not object 

to the PSI orally or in writing and did not raise his equal-protection-based 

objection until after the District Court sentenced him. When he did, he did not 

argue that imposition of the mandatory minimum violated the Equal Protection 

Clause. He stated only that he was aware that “that’s not the law at this time,” but 

wanted “to put that on the record and preserve it in case something changes in the 

future.” This objection did not provide the District Court with any support for his 

equal protection argument, did not suggest the Court made a sentencing error, and 

did not signal the Court to rule on the issue. 

Case: 17-13819 Date Filed: 04/12/2018 Page: 3 of 5 
4

Accordingly, we apply plain error review to Guizamano-Cortes’s equal 

protection claims. Because neither this Court nor the Supreme Court has ruled on 

whether Congress’s decision to exclude offenses under Title 46 from the safetyvalve statute violates equal protection, the District Court did not commit plain 

error. See Hesser, 800 F.3d at 1325. 

Further, were we to review Guizamano-Cortes’s equal protection claims de 

novo under the rational-basis standard, Guizamano-Cortes has failed to provide 

persuasive evidence that Congress had no reasonable basis for distinguishing 

between offenses of Title 21 and Title 46, especially given Congress’ presumption 

of validity. Byse, 28 F.3d at 1170. Where an equal protection challenge does not 

allege that the challenged statute either singles out a protected class of individuals 

or impinges on a fundamental right, the provision is subject to rational-basis 

review. United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006). 

Under the rational-basis test, a law does not violate equal protection so long as it is 

rationally related to a legitimate government interest. Id. A legislative 

classification subject to rational-basis review is presumed to be valid. United 

States v. Byse, 28 F.3d 1165, 1170 (11th Cir. 1994). Congress’ judgment will be 

sustained in the absence of persuasive evidence that Congress had no reasonable 

basis for drawing the lines that it did. United States v. Holmes, 838 F.2d 1175, 

1177 (11th Cir. 1988).

Case: 17-13819 Date Filed: 04/12/2018 Page: 4 of 5 
5

Here, the Government has identified a number of legitimate reasons why 

Congress may have viewed transnational drug trafficking as a more serious threat 

than domestic drug trafficking. These reasons include transnational drug 

trafficking’s potential to facilitate and fund transnational crime and terrorism, 

destabilize and spread violence throughout the international community, proliferate 

and stimulate domestic drug trafficking, and bypass and undercut domestic drug 

crime prevention efforts.

Accordingly, the District Court did not err in denying safety valve relief to 

Guizamano-Cortes. 

AFFIRMED.

Case: 17-13819 Date Filed: 04/12/2018 Page: 5 of 5